Filed 8/18/21 In re E.R. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re E .R.

, a Person Coming Under the Juvenile Court Law.

_______________________________ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent

,

v.

M.C.

,
Defendant and Appellant. B 30 8631

(Los Angeles County Super. Ct. No. 19CCJP04241C )

APPEAL fro m an order of the Superior Court of Los Angeles County, Martha Matthews, Judge. Affirmed. Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro

- Silva, County Counsel and Kim Nemoy, Assistant County Counsel , for Plaintiff and Respondent

.2 M.C. (Mother) , who has a long history of struggling with substance abuse, appeal s from a juvenile court order assum ing dependency jurisdiction over her one

- year

- old 1 son E.R. (Minor) after Mother tested positive for alcohol and marijuana and
missed a couple of court

- ordered drug tests

. We are asked to
decide whether substantial evidence support s the juvenile court ’s jurisdiction finding

.

I. BACKGROUND
A. Prior Pertinent Dependency History In 2003, a juvenile court termi nated Mother’s parental rights over two daughters due to Mother’s substance abuse; among other things, the younger of the two girls was exposed to
cocaine in

- utero. A year later, a third daughter was declared a dependent of the juvenile court based on the abuse and neglect of her older sisters; the court denied Mother reunification services and the girl was ultimately adopted by relatives in Texas.
Fourt een years later, in 2018 , the court terminated Mother’s parental rights over three other children due, in part, to Mother’s abuse of methamphetamine and marijuana while pregnant with the youngest of the three children and while caring for the two
older children

. In April 2019, while pregnant with the child that is the subject of this dependency appeal

, M other was arrest ed for

1 Th is was Minor’s age at the time of the juris diction hearing

. Minor was two months old at the time dependency proceedings were initiated.

Minor’s father is not a party to this appeal, because the allegations asserted against him were not sustained.3

methamphetamine possession . Two months after her arrest, the police discovered a methamphetamine pipe with residue inside of
it in the bedroom Mother shared with her children

. Shortly thereafter, t he Los Angeles County Department of Children and Family Services (the Department) filed a petition alleging Minor’s two youngest siblings, J.R. and A.R., 2 were at risk of serious harm as a result of Mother’s history of substance abuse, current abuse of marijuana, and the abuse and neglec t suffered by Mother’s six older children. T he juvenile court sustained the petition

, finding Mother’s history of drug abuse and evidence of recent relapses (entering two treatment programs in the two years immediately preceding the filing of the petition but completing only one) posed a substantial risk to J.R. and A.R. The juvenile court ordered both children removed from their parents’ custody due to Mother’s “high risk of relapse

. ” This

court subsequently affirmed the juvenile court’s ruling in an

un published opinion holding substantial evidence supported the jurisdiction finding . ( In re J.R

. , et al

. (December 29, 2020, B304328) [ nonpub. opn.].)

B. Th ese Dependency Proceedings In November 2019, less than a month after Minor was born, the Departmen t received a referral alleging general neglect
of Minor. In response, a Department social worker interviewed
Mother at a home she shared with her former mother

- in

- law and

t wo of her adult children (including a son who admitted to using mariju ana “regularl y on a daily basis ” ). Mother admitted to past

2 At the time of the petition’s filing, J.R. an d A.R. were, respectively, two and a half years old and 15 months old.4

substance abuse but claimed she had been sober for the last five to six years and insisted court

- ordered drug and alcohol tests had
been negative. The Department filed a dependency petition i n January
2020

. The petition alleged eight counts against Mother , one under Welfare and Institutions Code section 300, subdivision (a) (risk of serious physical harm inflicted non

- accidentally)

, 3 f our under subdivision (b) (1) (substantial risk of serious physical
harm f rom a parental failure or inability to protect) , and three under subdivision (j) (risk of abuse or neglect when a sibling has been abused or neglected). The b

- 3 count in the petition a verred
Minor w as endangered by Mother’s current abuse of marijuana
and her 17

- year history of substance abuse and child welfare proceedings . The j

- 2 count a sserted Minor w as at risk as a result
of Mother’s past and current substance abuse and Mother’s prior neglect of his older siblings.
At the initial detention hearing, t he juvenile court , over the Department’s objection, allowed Minor to remain at home with
M other contingent on Mother “ co ntinuing to test and test clean.”
T he court cautioned, however, that Mother must be vigilant because taking care of an infant is stress ful and, “[a] s everyone knows who is in re covery, stress can cause relapse.” Following the filing of the petition, Mother was re

interviewed by a Department investigator. Mother t old the investigator that she had been sober “for years” and claimed she

w as currently enrolled in outpatient programs only to help
maintain that sobriety. ( Mother’s description of her recent drug

3 Undesignated statutory references that follow are to the Welfare and Institutions Code.5

history was at odds with a statement she gave to the Department just a few months earlier in connection with the investigation
into J.R. and A.R. ’s well

- being ; in that earlier statement

, Mother indicated she had relapsed twice within the last two years and
had entered treat ment programs following each relapse

. ) Mother also admitted her adult son’s marijuana use made her recovery
from substance abuse more difficult

, but she maintained she was
not worried about relapsing; in her view, s he had too much to
lose.
In advance of the jurisdiction and disposition hearing, the Department reported on Mother’s recent drug testing

. The Departmen t advised Mother had tested negative for substance

use throughout her pregnancy with Minor and there were no records of Minor being born with a positive toxicology. After Minor’s birth, b etween November 2019 and January 2020, Mother had 13 negative test r esults and no positive test results

. From June through October 2020, Mother had 14 negative test
results but did not submit to testing three times

— and one of
those tests was scheduled just a week before the jurisdiction hearing that would later take place in November 2020

. 4 In addition, Mother tested positive on two occasions during this same time period: once for alcohol in July 2020

, and once for marijuana in late September 2020 (which was about a month before the jurisdiction hearing ) . Mother attribut ed the positive alcohol test to apple cider vinegar pills which she was taking as a

4 Mother offered no explanation for her failure to appear for two of these missed tests and the third missed test did not go forward apparently because Mother was unable to produce identification at the testing site.6

diet aid. Mother said she had “no idea” how she could have tested positive for marijuana. In advance of the jurisdiction hearing, the Department
conceded some of the co unts in the dependency petition should be dismissed. But the Department urged the juvenile court to
sustain the aforementioned b

- 3 (substantial risk from substance abuse) and j

- 2 (sibling abuse or neglect) counts, to take dependency jurisdiction over Mino r, and to keep Minor placed in Mother’s home albeit under the Department’s supervision.
At the November 2020 jurisdiction hearing, t he court
admitted Department reports concerning Minor and his siblings
J.R. and A.R. in evidence and sustained petition cou nts b

- 3 and j

2

. 5 Explaining its ruling, the court stated Mother’s long history of
substance abuse and evidence of recent relapses posed a
substantial risk to Minor’s well

- being. 6 The court dismissed the remaining counts in the petition

.

5 Although the court sustained the b

- 2 count alleging a substantial risk of serious harm attributable to Mother’ s substance abus e , the court struck language in that count stating Mother was “ a current abuser of marijuana .” The court explained it was striking that language because Mother’s positive test for a “very small amount” of marijuana did not warrant characterizing Mother as a n “abuser” of that drug

.

6 The court was particularly concerned about Mother’s recent positive tests for alcohol and marijuana, her inability to offer plausible explanations for either of those test results , and her misrepresentations about her substanc e use . The court stated:

“ [W] hen a person has a long history of substance abuse, relapse is always a risk. Relapse is, basically, one bad decision away. And

. . . denial is kind of a powerful force that can really p ull a person back into relapse. [¶] When the case

— the report that7 II. DISCUSSIO N It is undisputed that Minor’s siblings, including J.R. and
A.R. as discussed in our December 2020 opinion, have been found by a juvenile court to have been abused or neglected within the meaning of section 300, subdivision (b)(1). The juvenile court

as serted jurisdiction over M inor under subdivision (j) of section
300 in addition to subdivision (b)(1) , so the only question we must decide is whether there is substantial evidence of a substantial risk that Minor would be abused or neglected within the mea ning of section 300, subdivision (b)(1) as so many of his siblings had
been. ( In re I.J

. (2013) 56 Cal.4th 766, 774 ( I.J

. ) [“S ubdivisi on (j) applies if (1) the child’ s sibling has been abused or neglected as defined in specified other subdivisions and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions”]; see also In re R.T . (2017) 3 Cal.5th 622, 633

. ) As we will explain, there is.

“‘ [S]ubdivision (j) was intended to expand the grounds for
the exer cise of jurisdiction as to children whose sibling has been abused or neglected as defined in section 300, subdivis ion (a), (b),

was filed in February of this year, [Mother] was saying she’d been clean and sober for four years, but then that turned out not to be
true. And so, you know, [ Mother ] has kind of gone back and forth in terms of just how hone st she is with herself and other people about her substance abuse history. [¶] . . . [¶] [I] f someone is really trying to be clean and sober, there’s kind of a bright line. Sometimes people are tempted to think, ‘Well, I can still be clean and sober and smoke weed a little bit.’ But as people

. . . discuss in recovery programs all the time, once you step over that line, you are at a huge risk of relapse because you’ve taken that first step.”8

(d), (e), or (i). Subdivision (j) does not state that its application is
limited to the risk that the child will be abused or n eglected as defined in the same subdivision that describes the a buse or neglect of the sibling. Rather, subdivision (j) directs the trial
court to consider whether there is a substantial risk that the child will be harmed under subdivision (a), (b), (d), (e) or (i) of section 300, notwithstanding which of those subdivisions
describes the child ’ s sibling.’ [Citation.]

“ Unlike the other subdivisions, subdivision (j) includes a
list of fact ors for the court to consider: ‘ The court shall consider
the circums tances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.’ (§ 300, subd. (j).) ‘The “ nature of the abuse or neglect of the sibling” is only one of many factors that the court is to consider in assessing whether the child is at risk of abuse or neglect in the
fam ily home. Subdivision (j) thus allows the court to take into consideration factors that might not be determinative if the court were adjudicating a petition filed directly u nder one of those
subdivisions. [¶] The broad language of subdivision (j) clearl y indicates that the trial court is to consider the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm, within the meaning of any of the subdivisions enum erated in subdivision ( j). The provision thus accords the trial court greater latitude to exercise jurisdiction as to a child whose sibling has been found to
have been abused than the court would have in the absence of
that circumstance. ’ [Citation.]” ( I.J

. , supra , 56 Cal.4th at 774 .)9 A dequate evidence establish e s Minor was at substantial
risk of suffering abuse or neglect in the same manner as his siblings, i.e., from substance abuse by Mother

. Minor was relatively close in age to J.R. and A.R., there was nothing about
the gender of the children that suggested the risk to Minor was reduced, and Mother’s mental condition was the same, or worse

— given her denial of any drug use in the prior years

— as it was at the time of the jurisdiction finding regarding J.R. and A.R. I t

was also undisputed Mother was arrested for possession of methamphetamine while pregnant with Minor and shortly
thereafter a methamphetamine pipe (with residue still inside)
was found in the bedroom she shared with J.R. and A.R

. Furthermore, Mother advanced at least one explanation of a recent positive test that the juvenile court appropriately
concluded was not credible , and t here were also a couple missed drug tests in the months preceding the jurisdiction hearing despite the juvenile court’s admonishment a t the detention hearing that she test and test clean. When combined with Minor’s very young age and Mother’s repeated , protracted difficulties with substance abuse, this is sufficient evidence to support the juvenile court’s jurisdiction finding. ( In re Christopher R

. (2014) 225 Cal.App.4th 1210, 1219 [ substance abuse, which often renders parents unable to adequately supervise and care for a child, poses an inherent risk to children of “‘tender years’”].) To be sure, Mother’s record of multiple negativ e drug tests
since M inor’ s birth was some evidence that the requisite risk of
harm did not exist. But that does not defeat the substantial evidence that does support the juvenile court’s decision, especially when tests not long before the jurisdiction hea ring10

revealed alcohol and mariju ana use

— which , in light of Mother’s history and her denial of any use at all

, the juvenile court appropriately viewed as a gateway to a n even more damaging relapse. ( In re M.R

. (2017) 8 Cal.App.5th 101, 108 [“[W] e do not

co nsider whether there is evidence from which the juvenile court
could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did
draw ”].) Moreover , even putting Mother’s two positive tests out

o f mind , the juvenile court could reasonably conclude that the relatively short time in which Mother was mostly testing negative provided no adequate assurance that the risk to Minor
from substance abuse by Mother had adequately dissipated

. (See

, e.g. , In re J.C . (2014) 233 Cal.App.4th 1, 7 [seven months of sobriety insufficient to show parent was not at risk of relapse]; In
re Amber M

. (2002) 103 Cal.App.4th 681, 686 [mother’ s 372 days of sobriety insufficient to show changed circumstances in light of
her many years of substance abuse and previous relapses] .)11 DISPOSITION
The finding of jurisdiction is affirmed

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOO R, J.